Discrimination Cases

STEPHEN D. McCULLOUGH, Plaintiff v. BRANCH BANKING & TRUST CO., INC., Defendant No. COA99-149 (Filed 18 January 2000) 1. Disabilities— Equal Employment Practices Act — definition of handicap — alcoholism The trial court did not err in an employment termination case by instructing the jury that the term “handicapped” has been defined to exclude active alcoholism or in its definition of active alcoholism. Reading other statutes relating to the same subject with the Equal Employment Practices Act, N.C.G.S. § 143-422.2, “handicap” as used in the Act includes alcoholism but not active alcoholism and, using the common and ordinary meaning, an “active alcoholic” is an alcoholic who is currently engaged in the use of alcohol or was in the immediate past. 2. Employer and Employee— bonus — termination The trial court did not err in an action arising from an employment termination by denying plaintiff’s request for instructions regarding plaintiff’s claim for an unpaid wage bonus. Although there was no notification to plaintiff that termination of his employment could result in forfeiture of his bonus, the decision to require forfeiture of the bonus did not constitute a change in the benefits plan and no notice was required. 3. Venue— change — convenience of witnesses — motion after answer The trial court did not err by considering a motion for change of venue filed after the answer where the motion was based on the convenience of the witnesses. Appeal by plaintiff from order allowing defendant’s motion for change of venue filed 15 July 1994 by Judge Narley L. Cashwell in Wake County Superior Court, from oral order from the bench on 5 September 1997 denying plaintiffs motion for a directed verdict, from order denying plaintiffs motion for a new trial filed 18 December 1997, from order allowing defendant’s motion for costs filed 18 December 1997, from order denying plaintiff’s first and second motions to compel defendant to pay plaintiff’s expert reasonable fee for traveling to and from his deposition filed 18 December 1997, and from jury instructions given at trial, by Judge G.K. Butterfield, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 16 November 1999. Robert J. Willis, for 'plaintiff-appellant. Constangy, Brooks & Smith, LLC, by Edward Katze and Timothy R. Newton, and Narron & Holdford, P.A., by I. Joe Ivey, for defendant-appellee. GREENE, Judge. Stephen D. McCullough (Plaintiff) appeals a jury verdict and final judgment in favor of Branch Banking & Trust Company, Inc. (Defendant) finding Defendant did not wrongfully terminate the employment of Plaintiff and Defendant did not fail to pay Plaintiff a wage bonus established for the work of Plaintiff and other employees of Defendant. Plaintiff also appeals a 15 July 1994 order transferring venue from Wake County to Wilson County and an 18 December 1997 order denying him a new trial. Wrongful Termination Claim The evidence reveals Plaintiff was hired by Defendant in June 1986 with an agreement that either party could terminate the relationship “for any reason, whenever either chooses to do so.” Although none of his co-workers observed him under the influence of alcohol while at work throughout his employment with Defendant, Plaintiff regularly abused alcohol, frequently used marijuana, occasionally arrived at work with a hangover, and had trouble getting to work on time. Plaintiff testified, however, that his substance abuse did not interfere with his job performance. In 1986 and 1987, Plaintiff was charged with public intoxication twice and was arrested and charged three times for Driving While Impaired (DWI) in Wake, Durham, and Wilson Counties. The Wilson County DWI arrest, on 4 December 1987, also resulted in Plaintiff being arrested for Driving While License Revoked. Defendant learned of the Wilson County arrest through a newspaper article in The Wilson Daily Times. Consequently, Plaintiff was counseled by his supervisor Rodney Hughes (Hughes) and told Defendant’s medical plan would pay expenses for counseling and rehabilitation, leave would be available for rehabilitation, to seek help now while he recognized his problem, and Defendant would help him overcome his problem. Hughes stressed that Defendant would not tolerate a future occurrence of Plaintiffs alcohol related problems, and if another occurred, Plaintiff would be terminated. Plaintiff was ultimately convicted of DWI for both the Durham and Wilson County arrests. His driver’s license was permanently revoked, and he had to serve seven days in jail. Plaintiff concealed his jail term and his other arrests, and Defendant did not learn of Plaintiff’s jail term or his driver’s license permanent revocation until Plaintiff’s termination. On 20 October 1990, Plaintiff was arrested for DWI and Driving While License Permanently Revoked in Wake Forest, North Carolina. Plaintiff gave the arresting officer Horace Macon (Macon) a Florida driver’s license, because he was permanently banned from driving in this State. In connection with these charges, Plaintiff appeared for a hearing at the Department of Motor Vehicles (DMV) in February 1991. Plaintiff told the DMV hearing officer he lived at a Florida address, and his attorney told the DMV hearing officer Plaintiff had been living in Florida for the past three years and was in North Carolina visiting his girlfriend. As a result of these events, Macon, who was present at the DMV hearing, contacted Billy Montague (Montague), then Human Resources Director for Defendant, to verify Plaintiff’s employment in North Carolina. During this conversation, Macon told Montague what had transpired at the DMV hearing. Following his conversation with Macon, Montague contacted Hughes and Hughes’ superior Scott Reed (Reed) and conducted his own investigation into Plaintiff’s criminal record. This investigation uncovered Plaintiffs DWI arrests and his driver’s license permanent revocation. Montague was concerned about Plaintiffs trustworthiness and whether the surety bond required by law on all bank employees would terminate for Plaintiff, because the bond under which Plaintiff was covered would terminate as to any employee whenever the bank “learns of any dishonest or fraudulent act committed by such person at any time, whether in the employment of the insured or otherwise . . . On 12 March 1991, Defendant notified Plaintiff he was terminated effective 13 March 1991. Plaintiff filed this action in November of 1993 alleging Defendant wrongfully discharged him on the basis of his handicap, his alcoholism, in violation of the public policy of North Carolina as set forth in N.C. Gen. Stat. 143-422.2. Over Plaintiffs objection, the trial court instructed the jury, concerning Plaintiffs wrongful termination claim in pertinent part that: [Defendant was not entitled to terminate [P]laintiff if to do so violated public policy. A public policy violation would occur if a person is terminated from employment substantially because of a qualifying handicap when the person is capable of performing the essential functions of the job, with or without reasonable accommodation. In order to prevail on this First Issue, []the [P]laintiff must prove . . . the following three things: [] .... First,'that the [P]laintiff was handicapped by reason of being an alcohol dependent person. Now, ladies and gentlemen, the term “handicapped” is defined to mean any person who has a physical or mental impairment which substantially limits one or more major life activities. []The term “physical or mental impairment” has been defined to exclude active alcoholism, or drug addiction, or both.[] .... Following the previous instruction, Plaintiff requested and the trial court rejected the following instruction to the jury. “ ‘Physical or mental behavior that is directly caused by or a direct manifestation of a particular physical or mental impairment should be considered to be a part of that handicap.’ ” Over Plaintiffs objection, the trial court further instructed the jury in pertinent part: []In making the determination as to whether the [P]laintiff was handicapped, I instruct you that the handicap law expressly excludes individuals who are active alcoholics. Thus, a person who is an active alcoholic is not handicapped under North Carolina law. Now, you may evaluate a variety of factors in determining whether [P]laintiff was an active alcoholic at the time of his termination.... I instruct you, however, that if the evidence presented shows that the [P]laintiff, given his admission of alcoholism], was using alcohol at the time of his termination, you may find that the [P]laintiff was an active alcoholic. The term “using alcohol” is not intended to be limited to the use of alcohol within a matter of days or weeks before the [Plaintiff’s discharge. Rather, the terms appl[y] to the use of alcohol that has occurred recently enough to indicate that an individual is actively engaged in the use of alcohol. Or, the use of alcohol is an ongoing problem. [] An alcoholic employee who is using alcohol in a periodic fashion during the weeks and months prior to his termination is an active alcoholic. [] Wage Bonus Claim In 1990, Plaintiff convinced Defendant to start an incentive program for the overnight funding function he and two other employees operated for Defendant. In 1990, Plaintiff was paid his bonus at the end of the 1990 plan year after 28 November 1990. At the end of the 1990 plan year, Hughes advised Plaintiff the 1990 incentive compensation plan for the overnight funding would be renewed for the 1991 plan year. The 1991 plan year began on 29 November 1990. Hughes advised Plaintiff the standard or method for calculating the amount and share of the bonus Plaintiff would divide with his team would remain the same as in 1990. Plaintiff was not advised his right to receive this 1991 incentive compensation was subject to forfeiture on any grounds or conditioned on his tenure with Defendant, however, he testified Hughes “hadn’t decided what to do [about the paying of the bonus] if somebody leaves” before the end of the plan year. Plaintiffs employment with Defendant was terminated 13 March 1991, and he did not receive a bonus for the 1991 plan year. Plaintiffs complaint seeks payment of the unpaid wage bonus from Defendant under N.C. Gen. Stat. 95-25.22. The trial court instructed the jury in pertinent part as follows: The Fifth Issue in this case reads as follows: “Did [Defendant fail to pay the [P]laintiff a wage bonus established for the work of the [PJlaintiff and other employees from November 28, 1990 to March 1, 1991?” On this Fifth Issue, the burden of proof is on the [P]laintiff. The [PJlaintiff must prove, by the greater weight of the evidence, that [he] was entitled to a wage bonus at the time of his termination from employment. Whether [PJlaintiff was entitled to a bonus at the time of his termination depends upon the terms of the [DJefendant’s bonus plan which existed at the time of the [PJlaintiff’s termination. . . . If you find that under the [DJefendant’s bonus plan, the [PJlaintiff was entitled to a bonus at the time of his termination, you must answer this Fifth Issue “yes” in favor of the [PJlaintiff. If, on the other hand, you fail to so find, then you will answer the Fifth Issue “no” in favor of the [DJefendant. Plaintiff requested and the trial court rejected the following instruction to the jury regarding Plaintiffs wage bonus claim. “Under North Carolina law, the terms of the Defendant’s bonus plan which existed at the time of the Plaintiff’s termination do not include terms which provided for the loss or forfeiture of that bonus if certain events did or did not occur unless those terms were disclosed to the Plaintiff in writing by either providing him with a copy of those terms before the Plaintiff earned any part of that bonus or by [posting] those terms in a place accessible to the Plaintiff.” Change of Venue After filing its answer, Defendant filed a motion to change venue, pursuant to section 1-83(2), based on the convenience of the witnesses. In support of the motion, Defendant submitted an affidavit showing that all of the acts complained of occurred in Wilson County and the managers of Defendant and most of the witnesses lived in Wilson County. The trial court allowed the motion and transferred the case from Wake County to Wilson County. It should noted that Plaintiffs assignments of error numbers 1, 4, 6, 10, 13 and 16 are deemed abandoned, because they are not presented and discussed in Plaintiffs brief. N.C.R. App. P 28(a). The issues are whether: (I) the definition of a “handicapped person” given in section 168A-3(4) is properly used to determine the legislative intent of a “handicap” within the meaning of section 143-422.2; if so, (II) the jury instructions given by the trial court are consistent with the section 168A-3(4) definition; (III) the trial court erred in instructing the jury concerning Plaintiffs wage bonus claim; and (IV) the trial court erred in hearing and allowing Defendant’s motion for change of venue. Wrongful Termination At-will employees may be terminated for no reason or for arbitrary or irrational reasons, but they may not be terminated for an “ ‘unlawful reason or purpose that contravenes public policy.’ ” Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (citation omitted). The State’s “public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). Plaintiff, acknowledging he is an at-will employee, argues his termination of employment was in violation of this State’s public policy prohibiting discrimination on account of a person’s handicap or disability. Plaintiff specifically contends his termination was in consequence of his alcoholism and alcoholism qualifies as a handicap within the meaning of section 143-422.2. I The Equal Employment Practices Act of North Carolina (the Employment Act) provides in pertinent part: “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of. . . handicap . . . .” N.C.G.S. § 143-422.2 (1999). The Employment Act does not define “handicap” and therein lies the basis for the dispute in this case. Plaintiff points to the federal Vocational Rehabilitation Act (Rehabilitation Act) which excludes from its definition of an “individual with a disability” alcoholics “whose current use of alcohol prevents such individual from performing the duties of the job in question.” 29 U.S.C. § 706 (8)(C)(v) (1994). Defendant directs our attention to the North Carolina Handicapped Persons Protection Act (Handicapped Act) which specifically excludes “active alcoholism” from the definition of a handicapped person. N.C.G.S. § 168A-3(4)(a)(iii)(B) (1995). In determining our legislature’s intent of the meaning of “handicap” as used in the Employment Act, it is appropriate to consider other North Carolina statutes which relate to the same subject matter, although enacted at different times. Carver v. Carver, 310 N.C. 669, 674, 314 S.E.2d 739, 742 (1984). If related to the same subject matter, the statutes “must be construed together in order to ascertain [the] legislative intent.” Id. The Employment Act, enacted in 1977, protects the rights and opportunities of persons to “seek, obtain and hold employment without discrimination or abridgement on account of . . . handicap.” N.C.G.S. § 143-422.2. The Handicapped Act, enacted in 1985, encourages all handicapped persons “to engage in remunerative employment” and finds that “the practice of discrimination based upon a handicapping condition is contrary to the public interest and to the principles of freedom and equality of opportunity.” N.C.G.S. § 168A-2 (1995). These statutes, although enacted at different times, relate to the same subject matter, employment discrimination against handicapped persons, and, thus, must be construed together to ascertain legislative intent. Reading these statutes in pari materia, “handicap” as used in the Employment Act includes alcoholism but not “active alcoholism.” The trial court, thus, correctly instructed the jury that “the term ‘handicapped’ . . . has been defined to exclude active alcoholism.” II “Active alcoholism” is not defined in the Handicapped Act or any other North Carolina statute. Having no statutory definition, not having acquired a technical meaning, and a different meaning not being apparent from the statute, the phrase “active alcoholism” must be construed in accordance with its common and ordinary meaning, Supply Co. v. Motor Lodge, 277 N.C. 312, 319, 177 S.E.2d 392, 396 (1970), which can be gained from dictionaries, State v. Martin, 7 N.C. App. 532, 533, 173 S.E.2d 47, 48 (1970). Dictionaries define “active” to include “[e]ngaged in activity; participating,” American Heritage College Dictionary 13 (3d ed. 1997), and “alcoholism” is defined as “a dependence on alcohol” and “a chronic disease . . . caused by the excessive and habitual consumption of alcohol,” id. at 32. Thus, an “active alcoholic” is an alcoholic who is currently engaged in the use of alcohol or was in the immediate past engaged in the use of alcohol. In this case, the trial court instructed the jury that an “active alcoholic” employee is an alcoholic who was “using alcohol in a periodic fashion during the weeks and months prior to his termination.” This instruction is sufficiently consistent with the definition of “active alcoholism” herein approved and, therefore, does not constitute error. See Barnard v. Rowland, 132 N.C. App. 416, 427, 512 S.E.2d 458, 466 (1999) (trial court must instruct on the law of the case). Wage Bonus Claim III North Carolina’s Wage and Hour Act, section 95-25.13, provides in pertinent part: Every employer shall: (3) Notify its employees, in writing or through a posted notice maintained in a place accessible to its employees, of anv changes in promised wages prior to the time of such changes except that wages may be retroactively increased without the prior notice required by this subsection .... N.C.G.S. § 95-25.13(3) (1999) (emphasis added). We have construed this statute to permit an employer to make changes in an employee’s benefits, but the change applies only to those benefits accruing after written notice is given the employee or notice is posted in a place accessible to the employees. Narron v. Hardee’s Food Systems, Inc., 75 N.C. App. 579, 583, 331 S.E.2d 205, 207-08, disc. review denied, 314 N.C. 542, 335 S.E.2d 316 (1985), overruled on other grounds by J&B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812 (1987). Employees who have not been properly notified of changes in their benefits “are not subject to loss or forfeiture” of those benefits. N.C.G.S. § 95-25.7 (1999). Plaintiff argues the trial court erred in its jury instmctions because it failed to inform the jury Plaintiff was entitled to receive his bonus unless he was notified of the forfeiture provisions prior to the accrual of the bonus. Defendant argues forfeiture notification under section 95-25.13 is required only when there occurs a change in an employee benefit. In this case, Defendant contends, no change occurred in Plaintiff’s bonus plan because an employee’s entitlement to the bonus had not been determined if their employment ceased before the end of the plan year. The evidence in this record provides details of how the bonus would be computed in a plan year. There is no evidence, however, on the issue of entitlement to the bonus if employment was terminated before the expiration of the plan year. Plaintiffs employment was terminated before the end of the plan year and Defendant refused to pay any bonus. Although there was no notific

CHILES v MACHINE SHOP, INC Docket No. 207395. Submitted March 10, 1999, at Lansing. Decided November 5, 1999, at 9:35 am. Robert E. Chiles brought an action in the Isabella Circuit Court against Machine Shop, Inc., and others, alleging that the defendants violated the Worker’s Disability Compensation Act (wdca), MCL 418.101 et seq.; MSA 17.237(101) et seq., and the Handicappers’ Civil Rights Act, now the Persons with Disabilities Civil Rights Act (pwd-. cra), MCL 37.1101 et seq.) MSA 3.550(101) et seq., by laying him off and not recalling him, actions the plaintiff claims were in retaliation for his filing of a worker’s compensation claim for a back injury and a result of discrimination based on a perceived disability. Before jury déliberations, Machine Shop, Inc., did not object to the stipulated dismissal of all other defendants from the action. The court, William R. Rush, J., thereafter entered judgment on the jury’s verdict and award of damages to the plaintiff. Machine Shop, Inc., appealed. The Court of Appeals held: 1. The jury properly considered Machine Shop, Inc., to have been the plaintiff’s employer for purposes of determining its liability under the wdca and the pwdcra even though the plaintiff was classified as an employee of Forestry Products, Inc., which had loaned ■ him to Machine Shop, Inc. Machine Shop, Inc., did not object to the dismissal of the other defendants from the action, and Machine Shop, Inc., can properly be deemed under the economic-reality test to have been the plaintiff’s employer for purposes of the wdca. With respect to the pwdcra, liability under the act is not dependent on the existence of an employer-employee relationship at the time of the adverse employment action, but on the ability to affect adversely the terms and conditions of an individual’s employment or potential employment. 2. The trial court did not err in denying motions by Machine Shop, Inc., for a directed verdict and judgment notwithstanding the verdict with respect to the plaintiff’s worker’s compensation retaliation claim. The plaintiff established that there was a causal connection between the filing of the worker’s compensation claim and the layoff and nonrecall by showing that he applied for and received worker’s compensation benefits, that Machine Shop, Inc., laid him off and did not recall him, that the stated reasons for the layoff and nonrecall were a pretext, and that the real reason was retaliation for filing the worker’s compensation claim. 3. The trial court erred in denying motions by Machine Shop, Inc., for a directed verdict and judgment notwithstanding the verdict with respect to the plaintiff’s pwdcra claim. The plaintiff did not suffer from a perceived disability within the meaning of the pwdcra. Although the plaintiff was perceived to have had a physical impairment, that impairment was not a disability under the pwdcra because it was temporary and did not prevent the plaintiff from performing a range of jobs. Affirmed in part, reversed in part, and remanded for further proceedings. 1. Worker’s Compensation — Employer-Employee Relationships — Economic-Reality Test. The economic-reality test is used in determining whether an employer-employee relationship exists for purposes of the Worker’s Disability Compensation Act; the test involves four factors: control of the worker’s duties; payment of wages; the right to hire, fire and discipline; and performance of the duties toward the accomplishment of a common goal (MCL 418.101 et seq.; MSA 17.237[101] et seq.). 2. Civil Rights — Persons with Disabilities Civil Rights Act — Employers. Employer liability under the Persons with Disabilities Civil Rights Act can arise in the absence of an employer-employee relationship because the act encompasses potential employment in prohibiting ' discrimination based on handicaps not related to ability to perform job duties (MCL 37.1201[b], 37.1202[l][a]; MSA 3.550[201][b], 3.550[202][l][a]). 3. Worker’s Compensation — Employer Retaliation for Employee Claims. An employee establishes employer retaliation against the employee for the filing of a worker’s compensation claim where the employee shows that the employee asserted the right to worker’s compensation, the employee was discharged, the employer’s stated reason for discharge was a pretext, and the real reason was retaliation for the employee’s filing of the worker’s compensation claim (MCL 418.301[11]; MSA 17.237[301] [11]). 4. Civil Rights — Persons with Disabilities Civil Rights Act — Employment Discrimination. A plaintiff establishes a prima facie case of employment discrimination under the Persons with Disabilities Civil Rights Act by show-mg that the plaintiff is “disabled” as defined by the statute, the disability is unrelated to the plaintiff’s ability to perform the duties of a particular job, and the plaintiff has been discriminated against in one of the ways set forth in the statute (MCL 37.1202[l][b]; MSA 3.550[202][l][b]). 5. Civil Rights — Persons with Disabilities Civil Rights Act — Disabilities. A three-step process is used by a court in determining whether a plaintiff is, or is perceived to be, physically disabled within the meaning of the Persons with Disabilities Civil Rights Act; first, the court considers whether the plaintiff suffers from a physical impairment; second, the court identifies the life activity alleged to be limited by the impairment and determines whether it constitutes a major life activity; third, the court determines whether the impairment substantially limited the major life activity (MCL 37.1103[d] [i] [A], [in]; MSA 3.550[103][d][i][A], [iii]). 6. Civil Rights — Persons with Disabilities Civil Rights Act — Major Life Activities — Working. Work can be considered a major life activity that is substantially limited by an impairment when an individual is not substantially limited with respect to any other major life activity; the impairment must significantly restrict an individual’s ability to perform a range of jobs, not a particular job (MCL 37.1103[d][i][A], [iii]; MSA 3.550[103][d][i][A], [iii]). 7. Civil Rights — Persons with Disabilities Civil Rights Act — Impairments — Substantial Limits on Major Life Activities. A court determining whether an impairment substantially limits a major life activity considers the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or expected permanent or long-term effect; temporary medical conditions or intermittent, episodic impairments are not disabilities within the meaning of the Persons with Disabilities Civil Rights Act (MCL 37.1103[d][i][A], [iii]; MSA 3.550[103][d][i][A], [iii]). Charles W. Palmer, for the plaintiff. Miller, Johnson, Snell & Cummiskey, PL.C. (by Thomas R. Wurst and Jennifer L. Jordan), for the defendant. Before: Markman, P.J., and Hoekstra and Zahra, JJ. Per Curiam. In this action brought under the Persons with Disabilities Civil Rights Act (pwdcra), MCL 37.1101 et seq.\ MSA 3.550(101) et seq., and the Worker’s Disability Compensation Act, (wdca) MCL 418.101 et seq.] MSA 17.237(101) et seq., defendant Machine Shop, Inc., appeals as of right a jury award of $18,000 in favor of plaintiff and from the trial court’s denial of defendant’s motion for a directed verdict, judgment notwithstanding the verdict (jnov), or a new trial. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. In 1973, plaintiff began working for Morbark Industries, Inc., in its machine shop division. In 1988, Morbark Industries, Inc., split into several separate corporations. Plaintiff became classified as an employee of Forestry Products, Inc. However, plaintiff actually worked for defendant, Machine Shop, Inc., a similarly created offshoot of Morbark Industries, Inc. In December 1991, plaintiff sustained a work-related back injury. Despite this injury, plaintiff continued working as defendant’s sole Blanchard grinder operator until February of 1993, when he took a disability leave. Plaintiff received full worker’s compensation benefits from February until June of 1993, when he returned to work in a “favored” position. While plaintiff was on disability leave, another employee, Jim Zeneberg, was moved to plaintiff’s shift and assigned to operate the Blanchard grinder. However, in July 1994, as part of progressing from the favored position to a work-hardening program, plaintiff was reassigned to the Blanchard grinder. Plaintiff initially operated the grinder four hours a day, but eventually increased to full-time. During this period, Zeneberg was temporarily assigned to other machines. While plaintiff participated in the work-hardening program, he was paid $6 an hour and a supplemental worker’s compensation wage-loss differential. He was told that he would resume earning his regular wage of $11.75 an hour when his doctor lifted his work restrictions. On February 24, 1995, plaintiff’s treating physician provided documentation to defendant indicating that plaintiff could return to work without restrictions. On February 27, plaintiff resumed earning his regular wage. The next day, February 28, 1995, plaintiff was laid off and notified that he would not be rehired. Craig Price, the health and human services director for all of Morbark Industries, agreed that plaintiff was misled into believing that once his restrictions were lifted, he would return to his full-time position as a grinder operator. According to defendant’s president, Gary Cotter, plaintiff was laid off because he was not as productive as Zeneberg, the replacement operator. On May 4, 1995, plaintiff filed suit alleging that he was laid off and not recalled in retaliation for filing his worker’s compensation claim and because he was perceived as suffering from a disability (impaired back). In November 1995, following Zeneberg’s unfortunate death, plaintiff was called back to work as the Blanchard grinder operator. Upon his return, plaintiff was classified as defendant’s employee. i For its first claim of error, defendant contends that because it was not technically plaintiff’s employer when the alleged retaliatory and discriminatory actions occurred, it was not a proper party to this suit. We disagree. At the onset of trial, the named defendants included defendant Machine Shop, Inc., Morbark Industries, Inc., Morbark Maintenance Company, and Forestry Products, Inc. Before jury deliberations, plaintiff offered to stipulate the dismissal of all entities except defendant. In response, defense counsel indicated that he was “not going to object.” Consequently, the jury considered only defendant’s liability. Under the facts in this case, we find that the jury properly considered defendant’s liability under the wdca and the pwdcra. This Court applies the economic-reality test to determine whether an employer-employee relationship exists for purposes of the wdca. James v Commercial Carriers, Inc, 230 Mich App 533, 537; 583 NW2d 913 (1998). The test involves four basic factors: (1) control of the worker’s duties, (2) payment of wages, (3) the right to hire, fire, and discipline, and (4) performance of the duties toward the accomplishment of a common goal. Id. In applying these factors, the totality of the circumstances must be examined, with no single factor controlling. Id. Under this test, defendant was plaintiff’s employer for purposes of the wdca. At the time plaintiff participated in the work-hardening program and when he was laid off, he was working for defendant as a loaned employee. Defendant directed his activities. Further, defendant clearly had the right to hire, fire, and discipline plaintiff because, in making the decision to lay off plaintiff and not recall him for over eight months, defendant exercised these rights. With respect to factor four, plaintiff performed work that was part of a “common objective integral to [defendant’s] business” and work that would “normally follow the usual path of an employee.” Id. The only factor that arguably does not weigh in favor of the finding of an employment relationship is the payment of wages. However, we note that defendant paid plaintiff’s actual employer, Forestry Products, Inc., for the right to use plaintiff’s services. Thus, under the economic-reality test, we find that defendant was plaintiff’s employer. With respect to the PWDCRA, we hold that because liability under the act is not dependent on the actual existence of an employer-employee relationship at the time of the adverse employment action but, rather, on the ability to affect adversely the terms and conditions of an individual’s employment or potential employment, defendant’s position lacks merit. The act addresses the conduct of an “employer” who takes adverse employment action against an “individual” because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job. MCL 37.1202(1)(a); MSA 3.550(202)(1)(a). The act does not limit the definition of “employer” to the plaintiff’s employer but, instead, simply defines it as a “person who has 1 or more employees.” MCL 37.1201(b); MSA 3.550(201)(b). The scope of the act clearly encompasses actions taken by an employer before an employment relationship even exists, e.g., discriminatorily refusing to hire an applicant on account of a disability. Our reading of the plain language of the statute does not require that an employment relationship exist, but simply that the employer/defendant have the authority to affect a plaintiff’s employment or potential employment. Consequently, we find that the act was intended to encompass the relationship present in this case. n Defendant also claims that the trial court erred in denying its motions for a directed verdict and JNOV with respect to plaintiff’s worker’s compensation retaliation claim. We disagree. The grant or denial of a motion for a directed verdict or JNOV is reviewed de novo. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997); Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998). In either case, this Court must view the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Forge, supra; Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 663; 575 NW2d 745 (1998); Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195; 555 NW2d 733 (1996). The denial of a motion for a directed verdict or JNOV is reviewed to determine whether the nonmoving party failed to establish a claim as a matter of law. Kubczak, supra; Forge, supra. Pursuant to the wdca, an employer may not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under [the wdca] or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by [the wdca]. [MCL 418.301(11); MSA 17.237(301)(11).] The burden is on plaintiff to show that there was a causal connection between the protected activity, i.e., the filing of his worker’s compensation claim, and the adverse employment action. See, by analogy, DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997). The lower court instructed the jury that plaintiff had the burden of proving that (1) he asserted his right for worker’s compensation, (2) defendant laid off or failed to recall plaintiff, (3) defendant’s stated reason for its actions was a pretext, and (4) defendant’s true reasons for its actions were in retaliation for plaintiff’s having filed a worker’s compensation claim. The court further instructed the jury that it should find for defendant only if retaliation was not one of the motivating factors in its decisions. This instruction appears to have been based on SJI2d 105.04, which sets forth the shifting burdens of proof that apply in retaliation claims based on the Civil Right Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Neither party objected to the jury instructions at trial, and this Court is satisfied that these instructions accurately set forth the shifting burdens of proof that should also apply in a worker’s compensation retaliation suit. See also, DeFlaviis, supra. It is undisputed that plaintiff applied for and received worker’s compensation benefits and that he was laid off and not recalled. Defendant claims that plaintiff’s layoff was not an adverse employment action. However, there was sufficient evidence to show that defendant’s stated reason for termination was a pretext. Evidence indicated that although plaintiff had worked for Morbark Industries, Inc., for twenty-two years, no disciplinary action was noted in his personnel file. To the contrary, personnel records expressly and repeatedly indicated that plaintiff was an excellent worker. Although Cotter indicated that these positive reports had been fabricated for internal reasons, the jury was free to reject this testimony as untruthful and self-serving. Along the same vein, defendant claimed that plaintiff’s performance was so poor that defendant had no intention of calling him back to work in any position. Yet, after plaintiff filed this lawsuit, defendant recalled him, allegedly because of the company’s standard practice of recalling the most qualified workers to fill open positions. From this evidence, the jury could have concluded that defendant’s stated reason for laying off the plaintiff and failing to recall him was pure pretext. Moreover, there was sufficient evidence from which a reasonable juror could have concluded that a retaliatory motive contributed to defendant’s actions. DeFlaviis, supra at 436. Plaintiff testified that he actively pursued having his work restrictions lifted because company representatives assured him that this was the only obstacle keeping him from returning to his full wages. In effect, plaintiff was terminated on the day after he succeeded in ending his own worker’s compensation eligibility. On the basis of the timing of the layoff, evidence that cutbacks were not necessary, evidence that upper management inquired into the cost of plaintiff’s worker’s compensation benefits, and evidence of defendant’s role in having the work restrictions lifted, it was reasonable for the jury to conclude that retaliation was a motive for laying off plaintiff and not recalling him. Thus, the trial court’s denial of defendant’s motions for jnov and a directed verdict was not error. m Defendant next claims that the lower court erred in denying its motions for a directed verdict and JNOV with respect to plaintiffs pwdcra claim. We agree. We read the PWDCRA in light of the primary goal of judicial interpretation, which is to ascertain and give effect to the intent of the Legislature. Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997). Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. People v Lee, 447 Mich 552, 557-558; 526 NW2d 882 (1994). Provisions of a statute are not construed in isolation but, rather, in the context of other provisions of the same statute to give effect to the purpose of the whole enactment. Guitar v Bieniek, 402 Mich 152, 158; 262 NW2d 9 (1978). “Further, in interpreting provisions of the [pwdcra], analogous federal precedents are persuasive, although not necessarily binding.” Chmielewski v Xermac, Inc, 457 Mich 593, 601-602; 580 NW2d 817 (1998). This Court and the Michigan Supreme Court have noted that the federal Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the pwdcra share the same purpose and use similar definitions and analyses, and both courts have relied on the ADA in interpreting the pwdcra. Chmielewski, supra at 602-603; Collins v Blue Cross Blue Shield of Michigan, 228 Mich App 560, 568; 579 NW2d 435 (1998); Stevens v Inland Waters, I

HALL v McREA CORPORATION Docket No. 207233. Submitted June 8, 1999, at Detroit. Decided October 29, 1999, at 9:10 A.M. Leave to appeal sought. Howard Hall brought an action in the Wayne Circuit Court against McRea Corporation, alleging that he, aged fifty-three and diagnosed with amyotrophic lateral sclerosis, was demoted and then fired by the defendant in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., which prohibits age-based employment discrimination, and in violation of the Handieappers’ Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., which prohibits handicap-based employment discrimination. The court, Michael J. Talbot, J., granted summary disposition for the defendant, ruling that the plaintiff’s prior representation of total disability in seeking benefits from the Social Security Administration served to judicially estop the plaintiff from maintaining a handicap discrimination claim and that evidentiary support for the age discrimination claim was lacking. The plaintiff appealed. The Court of Appeals held-. 1. Summary disposition of the handicap discrimination claim was inappropriate. A plaintiff’s representation of total disability to the Social Security Administration does not automatically estop the plaintiff from alleging, for purposes of the Handieappers’ Civil Rights Act, that the plaintiff was able to perform the job in question with reasonable accommodation. 2. Under an intentional discrimination theory of age discrimination, the plaintiff must show membership in a protected class, discharge from employment, that the plaintiff was qualified for the position, and that the plaintiff was replaced by a younger person. The plaintiff must prove the elements by a preponderance of the evidence. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the discharge. If the defendant satisfies this burden of production, the presumption raised by the prima facie case is rebutted. The burden of proof then shifts back to the plaintiff, who must show that there was a triable issue of fact that the employer’s preferred reasons were not true reasons, but were a mere pretext for discrimination. The prima facie case elements and burden-shifting analysis apply to claims under the Handicappers’ Civil Rights Act as well as to claims under the Civil Rights Act. In this case, the plaintiff failed to establish that the defendant’s proffered reason for discharge, i.e., unsatisfactory job performance, was a mere pretext for discrimination. Thus, the defendant was entitled to summary disposition of both the age discrimination claim and the handicap discrimination claim regardless of the trial court’s error in summarily dismissing the handicap discrimination claim on the basis of judicial estoppel. Affirmed. 1. Civil Rights — Handicappers’ Civil Rights Act — Employment Discrimination — Social Security Disability — Judicial Estoppel. A plaintiff in an action alleging unlawful employment discrimination under the Handicappers’ Civil Rights Act, now the Persons with Disabilities Civil Rights Act, who has previously represented total disability in seeking benefits from the Social Security Administration is not automatically estopped from alleging that the plaintiff is able to perform the job in question with reasonable accommodation for purposes of the Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] ei seq.). 2. Civil Rights — Employment Discrimination — Discharge — Age — Handicap. A prima facie case and rebuttable presumption of age discrimination with respect to termination of employment is established by a plaintiff who shows that the plaintiff is a member of the protected class, was discharged, was qualified for the position, and was replaced by a younger person; once a prima facie case is made, the defendant must produce evidence of a legitimate, nondiscriminatory reason for termination; if the defendant produces such evidence, the plaintiff must prove by a preponderance of the evidence that the reason offered by the defendant is a mere pretext; the same burden-shifting analysis applies to a claim of handicap discrimination with respect to termination of employment once the plaintiff establishes a prima facie case and rebuttable presumption of discrimination by showing that the plaintiff is handicapped as defined in the Handicappers’ Civil Rights Act, now the Persons with Disabilities Act, but that the handicap is unrelated to the plaintiff’s ability to perform the plaintiff’s job duties with or without reasonable accommodation (MCL 37.1101 et seq., 37.2101 et seq.; MSA 3.550[101] et seq., 3.548[101] et seq.). James J. Harrington, III, and Karen H Safran, for the plaintiff. DeWitt, Balke & Vincent, P.L.C. (by Charles C. DéWitt, Jr., and William B. Balke) for the defendant. Before: Zahra, P.J., and Saad and Collins, JJ. Saad, J. Plaintiff appeals as of right from an order granting defendant’s motion for summary disposition of plaintiff’s claims of age and handicap discrimination. We affirm, albeit on different grounds than those stated by the trial court. I. facts and proceedings Plaintiff was employed as the full-time office manager for defendant, a small auto parts supply business. In November 1995, plaintiff informed Ray Fredrickson, defendant’s president, that he had been diagnosed with amyotrophic lateral sclerosis (als), more commonly known as Lou Gehrig’s disease. Als is an irreversible, degenerative disease that ultimately results in paralysis and death. Plaintiff advised his employer that he was still able to perform his job duties, and he continued to do so full-time for the next four or five months. On March 11, 1996, plaintiff broke his ankle, which required him to take a two-week absence from his work. The broken ankle was unrelated to the ALS condition. While plaintiff was off work, defendant assigned his job duties to Ernie Parpart. Parpart was defendant’s radial drill operator and had not previously performed office or computer duties for defendant. While filling in for plaintiff, Parpart informed Kurt Fredrickson, defendant’s vice president and Ray Fredrickson’s son, that he had discovered errors plaintiff made in quoting prices for customers. When plaintiff returned to work, Kurt Fredrickson appointed Parpart as full-time manager and reduced plaintiff’s hours to twenty a week. Parpart continued to discover plaintiff’s errors and report them to Kurt Fredrickson. Parpart also began to keep a record or log of plaintiff’s shortcomings. The record does not reveal the nature of this “log”; however, it was not defendant’s customary practice to keep a log of this kind on employees’ errors or performance. Kurt Fredrickson and Parpart decided that Parpart should confront plaintiff about his errors. Following a private meeting between Parpart and plaintiff in late April 1996, plaintiff’s employment with defendant ended. The parties dispute the circumstances of plaintiff’s departure from defendant’s company. Plaintiff alleges that Parpart fired him on Kurt Fredrickson’s instructions; Kurt Fredrickson avers that Parpart informed him that plaintiff voluntarily quit. At the time plaintiff left defendant’s employ, plaintiff was fifty-three years old, and Parpart was forty-one. Plaintiff filed a two-count complaint alleging age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq., and disability discrimination in violation of the Handicappers’ Civil Rights Act (hcra) (now known as the Persons with Disabilities Civil Rights Act), MCL 37.1101 et seq.) MSA 3.550(101) et seq. The trial court granted defendant’s motion for summary disposition, holding that judicial estoppel barred plaintiff’s hcra claim and that plaintiff lacked evidentiary support for the age discrimination claim. We affirm, albeit on different grounds. H. ANALYSIS A Plaintiff argues that the trial court should not have considered defendant’s judicial estoppel defense because defendant failed to raise judicial estoppel in its affirmative defenses. Estoppel is an affirmative defense that must be stated in a party’s responsive pleading as originally filed or as amended in accordance with MCR 2.118. MCR 2.111(F)(3)(a). Defendant did not attempt to raise this affirmative defense until it filed its reply brief to plaintiff’s opposition to defendant’s summary disposition motion. In the reply brief, defendant requested leave to amend its affirmative defenses, but it did not make a separate motion for leave to amend as required by MCR 2.118(A)(2). At the summary disposition motion hearing, defendant attempted to move orally to amend the affirmative answers, but the trial court struck the motion on the ground that plaintiff did not have the opportunity to respond. Nonetheless, the trial court granted defendant’s summary disposition motion partly on the basis of judicial estoppel. On appeal, plaintiff argues that the trial court’s denial of the motion to amend the answer precluded the trial court from ordering summary disposition based on judicial estoppel. We agree that the trial court’s orders were inconsistent. However, we need not determine an appropriate remedy. As seen in the following discussion, we are able to affirm the trial court’s summary disposition order on grounds other than judicial estoppel. B Notwithstanding the trial court’s inconsistent orders with respect to defendant’s motion to amend its affirmative defenses, it was inappropriate for the trial court to grant summary disposition on the basis of judicial estoppel. Under recent developments in this area of the law, plaintiff’s handicap discrimination claim was not automatically precluded by his representation of a total disability to the Social Security Administration. According to the judicial estoppel doctrine, a party who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding. Paschke v Retool Industries, 445 Mich 502, 509-510; 519 NW2d 441 (1994). To establish a prima facie case of discrimination under the HCRA, the plaintiff must show that he is “handicapped” as defined in the statute, but that the handicap is unrelated to his ability to perform the job duties with or without reasonable accommodations. Collins v Blue Cross Blue Shield of Michigan, 228 Mich App 560, 568-569; 579 NW2d 435 (1998); MCL 37.1103(d)(i)(A); MSA 3.550(103)(d)(i)(A). The crux of defendant’s judicial estoppel argument is that plaintiff reported to the Social Security Administration that he was totally disabled, and that plaintiff is therefore judicially estopped in this lawsuit from making the inconsistent claim that his disability did not interfere with his job duties. Defendant relies on Tranker v Figgie Int’l Inc, 221 Mich App 7; 561 NW2d 397 (1997) (Tranker I). In Tranker I, this Court originally held that the plaintiff’s representations to the Social Security Administration that he was totally and permanently disabled precluded a claim under the HCRA. Our Supreme Court remanded Tranker I to this Court to reconsider the issue in light of federal circuit court decisions that allowed claims under the Americans with Disabilities Act (ADA) though the plaintiff previously represented a total disability to the Social Security Administration. 456 Mich 934 (1998). On remand, Tranker v Figgie Int’l, Inc (On Remand), 231 Mich App 115; 585 NW2d 337 (1998) (Tranker II), this Court disavowed its holding that judicial estoppel barred the plaintiff’s handicap discrimination claim. This Court noted that the differences between the HCRA and a claim to the Social Security Administration required the reversal: We agree with the Swanks court that the receipt of social security disability benefits should not bar a subsequent claim under the HCRA for the same reasons that it does not bar a subsequent claim under the ADA. The two acts are designed for different purposes and utilize different standards, and requiring a plaintiff to choose between the acts is unreasonable and illogical. Moreover, we agree that the social security definition of “disability” does not require a finding that the individual cannot perform any job -under any circumstance. Griffith, supra at 382. The ssa [Social Security Administration] does not take into consideration that a disabled individual may be able to perform a job with reasonable accommodations. Therefore, it is not inconsistent that a plaintiff could be disabled under the ssa and still be qualified to perform the duties of his job or a job he is seeking with reasonable accommodation under the hcra. For that reason, we also agree that judicial estoppel should not bar a subsequent handicapper claim. [Tranker II, supra, 231 Mich App 121-122.] The Court noted, however, that “although . . . judicial estoppel does not operate to automatically bar a disability benefit recipient’s handicap discrimination claim, statements made by the plaintiff in his prior application for disability benefits may weigh against him in his subsequent handicap discrimination claim.” Id., 122-123 (emphasis added). We now consider how a plaintiff’s statements to the Social Security Administration might weigh against him in a subsequent discrimination claim. Recently, the United States Supreme Court elaborated on this issue. In Cleveland v Policy Management Systems Corp, 526 US 795; 119 S Ct 1597; 143 L Ed 2d 966 (1999), the Supreme Court held that a plaintiff’s representation of total disability to the Social Security Administration does not automatically estop the plaintiff from alleging, for purposes of an ada claim, that she is able to perform the job in question. However, the Court also held that to survive a summary judgment motion, the plaintiff must explain why her statement to the administration is consistent with her claim that she can perform the essential functions of the job with reasonable accommodation: When faced with a plaintiff’s previous sworn statement asserting “total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ada claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good faith belief in, the earlier statement, the plaintiff could nonetheless “perform the essential functions” of her job, with or without “reasonable accommodation.” [Id., 119 S Ct 1604.] The Cleveland requirement of an explanation from the plaintiff is fully consistent with this Court’s holding in Tranker II. If we were unable to affirm the trial court’s grant of summary disposition on different grounds, we would remand this case to the trial court for further proceedings consistent with Cleveland. While plaintiff’s representation to the Social Security Administration does not automatically preclude his handicap discrimination claim, he should not be permitted to proceed without explaining how he could, in good faith, represent a total disability and be able to perform the job with reasonable accommodation. c Although plaintiff’s representation to the Social Security Administration was not sufficient to warrant summary disposition of the handicap discrimination claim, we nonetheless affirm because defendant was entitled under MCR 2.116(C)(10) to summary disposition of the claims of handicap and age discrimination. We affirm because the trial court reached the right result, albeit for the wrong reason. Yerkovich v AAA, 231 Mich App 54, 68; 585 NW2d 318 (1998). This Court reviews decisions on motions for summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Motions under MCR 2.116(C)(10) test the factual support of the plaintiff’s claim. Id. The court considers the affidavits, pleadings, depositions, admissions, and other evidence submitted to determine whether a genuine issue of any material fact exists to warrant a trial. Id. Both this Court and the trial court must resolve all reasonable inferences in favor of the non-moving party. Bertrand v Alan Ford, Inc, 449 Mich 606, 618; 537 NW2d 185 (1995). Under an intentional discrimination theory of age discrimination, the plaintiff must show (1) membership in a protected class, (2) discharge from employment, (3) that the plaintiff was qualified for the position, and (4) that he was replaced by a younger person. The plaintiff must prove the elements by a preponderance of the evidence. Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906 (1998). The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the discharge. Id., 173. At this stage, defendant does not need to persuade the court that it was actually motivated by the preferred reasons. It is sufficient for defendant’s evidence to raise a genuine issue of fact with respect to whether it discriminated against the plaintiff. Id., (citing Texas Dep’t of Community Affairs v Burdine, 450 US 248, 254-255; 101 S Ct 1089; 67 L Ed 2d 207 [1981]). The defendant must set forth, through admissible evidence, the reasons for the adverse employment decision. The explanation must be legally sufficient to justify judgment for the defendant. If the defendant satisfies this burden of production, the presumption raised by the prima facie case is rebutted. Lytle, supra, 174. The burden of proof then shifts back to the plaintiff, who must show “that there was a triable issue of fact that the employer’s proffered reasons were not true reasons, but were a mere pretext for discrimination.” Id. Our Supreme Court has adopted the “intermediate position” for determining the proper summary disposition standard for discrimination claims under the Civil Rights Act: Under this position, disproof of an employer’s articulated reason for an adverse employment decision defeats summary disposition only if such disproof also raises a triable issue that discriminatory animus was a motivating factor underlying the employer’s adverse action. In other words, plaintiff must not merely raise a triable issue that the employer’s proffered reason was pretextual, but that it was a pretext for age or sex discrimination. Therefore, we find that, in the context of summary disposition, a plaintiff must prove discrimination with admissible evidence, either direct or circumstantial, sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff. [Id., 175-176.] The prima facie case elements and burden-shifting analysis apply to HCRA claims as well as to Civil Rights Act claims. See Collins, supra, 569, and Rollert, supra. Here, plaintiff has not satisfied this burden. Plaintiff established a prima facie case of discrimination under both theories by alleging that he was first demoted and then terminated from his employment and replaced by a younger, nonhandicapped person. The burden then shifted to defendant, which met its burden of production by offering a legitimate, nondiscriminatory reason for plaintiff’s demotion and termination. Rollert v Dep’t of Civil Service, 228 Mich App 534, 538; 579 NW2d 118 (1998). Vice president Kurt Fredrickson swore in an affidavit that Parpart brought to light problems with plaintiff’s performance and that plaintiff quit his employment after he was confronted regarding errors in his work. This evidence satisfies defendant’s burden of production at the second phase of the prima facie case. Plaintiff has failed to establish that any of these proferred reasons are a pretext for discrimination. Plaintiff does not deny that Parpart reported problems with plaintiff’s performance to Kurt Fredrickson, nor does he challenge the accuracy of Paipart’s reports. Instead, plaintiff relies